Considered
and decided by Minge, Presiding Judge; Lansing, Judge; and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

LANSING, Judge

In
this appeal from the denial of his presentence motion to withdraw his guilty
plea, Chao Lee challenges the district court’s determination that he did not
present a fair and just basis for withdrawal.
Lee also appeals directly from his conviction, contending that his plea
lacks a sufficient factual basis. Because
the district court did not abuse its discretion in denying Lee’s motion and because
the record evinces facts adequate to support Lee’s conviction, we affirm.

F A C T S

Chao
Lee entered a negotiated plea of guilty to aiding and abetting intentional
second-degree murder in violation of Minn. Stat. §§ 609.19, subd. 1(1);
609.05 (2002). The plea agreement
stipulated that Lee would receive a 204-month sentence, a downward durational
departure from the 306-month presumptive sentence. At the plea hearing, Lee acknowledged that he
was able to make a knowing plea of guilty; he was not pressured into entering
his plea; he had enough time to consult with his attorneys about pleading
guilty; he was satisfied with his representation; and he understood he was
surrendering his right to a jury trial.

On
examination to establish a factual basis, Lee testified to the events
surrounding the murder. He explained
that on the evening of November 27, 2003, the victim, Xing Moua, and others assaulted
Lee’s friends Jon Vang and Pheng Song.
Later that evening, Lee, Vang, Song, and others met at a restaurant and
agreed to go to Moua’s apartment and retaliate.
Lee admitted he knew that Song invariably carried a knife. Song, Vang, Lee, and five others proceeded to
Moua’s address where they found Moua getting out of his car in the apartment
parking lot. A fight erupted when Moua
swung at Song and missed, and Lee punched Moua in the face. In the melee that followed, Song and three
others set upon Moua while Vang and Lee ran to engage two other individuals who
were attempting to come to Moua’s defense. Lee stated that he turned to leave when he saw
Vang brandish a knife, and, as Lee fled, he saw Moua lying in a large pool of
blood. On December 1, 2003, Moua died of
injuries sustained in the fight, including twenty-three stab wounds.

At
the close of the plea hearing, the district court accepted Lee’s guilty plea
and scheduled a sentencing date. Before
sentencing, Lee filed a motion to withdraw his plea. The district court heard arguments at the
sentencing hearing, denied Lee’s motion to withdraw his guilty plea, and
sentenced him to the stipulated 204 months.
Lee now appeals the district court’s denial of his plea-withdrawal
motion and directly appeals from his conviction, arguing that his plea lacks an
adequate factual basis.

D E C I S I O N

I

A
defendant does not have an absolute right to withdraw a guilty plea. Shorter
v. State, 511 N.W.2d 743, 746 (Minn.
1994). Under Rule 15.05, subd. 2, of the
Minnesota Rules of Criminal Procedure, the district court may allow a criminal
defendant to withdraw his guilty plea before sentencing if to do so would be
fair and just. Whether to allow
withdrawal under this standard is “left to the sound discretion of the trial
court, and it will be reversed only in the rare case in which the appellate
court can fairly conclude that the trial
court abused its discretion.” Kim v. State, 434 N.W.2d 263, 266 (Minn. 1989).

Requiring
a fair and just basis as a threshold for presentence plea withdrawal protects
against a practice of withdrawing a guilty plea “for any reason or without good
reason at any time before” sentencing. Id. If no standard is required, the
plea-taking process could become “a means of continuing the trial to some
indefinite date in the future when the defendant might see fit to come in and
make a motion to withdraw his plea.” Id. In applying the fair and just standard, “the
[district] court is to give due consideration not just to the reasons advanced
by the defendant but to any prejudice the granting of the motion would cause
the prosecution by reason of actions taken in reliance upon the defendant’s
plea.” Id.

Lee
presented the district court with four arguments for granting his plea-withdrawal
motion. Lee argued that he met the “fair
and just” standard because (1) codefendants who pleaded guilty before and after
Lee’s own plea received shorter sentences; (2) Lee decided he was willing to
risk a longer sentence by placing his fate in the hands of a jury; (3) Lee had
received threats from Moua’s incarcerated associates; and (4) the state would
not be prejudiced. The district court
determined that these arguments did not present a fair and just basis for
allowing Lee to withdraw his plea. We
discern no abuse of discretion in that determination.

Lee’s
first argument is undermined by the fact that before he entered his guilty plea
he knew that Vang, who Lee considered the most culpable codefendant,had pleaded guilty and received a lesser
sentence. Furthermore, it is not at all
clear that Vang was more culpable. The
record indicates that at his plea hearing, Vang testified that Lee had also
stabbed Moua. Lee has failed to
establish a factual basis for his argument that the prosecutor agreed to
discriminatory sentencing or that the district court imposed a more lenient
sentence on a more culpable codefendant.

Lee’s
second argument is also unpersuasive.
Lee knew he was foregoing his right to a jury trial when he entered his
plea. Although Lee may well have second
thoughts about the finality of a decision that results in a seventeen-year prison
sentence, finality is nonetheless necessary to prevent a revolving continuance
that would make trial dates contingent on when a “defendant might see fit to
come in and make a motion to withdraw his plea.” Id. More than a change of heart is needed to reinstate
intelligently surrendered rights if the plea-taking process is to fulfill its
purpose in the effective administration of justice.

Lee’s
third argument is misplaced. Allowing
Lee to withdraw his plea would not address his concern about threats he has reportedly
received from Moua’s imprisoned allies. There
is no evidence that these threats turn on whether he is imprisoned as the
result of a plea or a trial.

Lee’s
final argument, that withdrawal of his plea would not prejudice the state, is disputed.
But a resolution of that dispute is
unnecessary to the disposition of Lee’s appeal. Prejudice to the state acts as a
counterbalance to the legitimate reasons for withdrawal offered by the
defendant. Because Lee did not provide a
fair and just reason to support his plea-withdrawal motion, the district court was
not required to consider the degree to which the state would be prejudiced if
the motion were granted.

The
district court considered each of Lee’s arguments in reaching its determination. Taken together, Lee’s arguments justify the
district court’s conclusion that Lee’s request for withdrawal of his plea rests
on his dissatisfaction with the terms of his plea agreement and his hope that
he would receive a better result with a jury trial. More compelling reasons are necessary to
satisfy the “fair and just” standard; the district court did not abuse its
discretion in denying the motion for plea withdrawal.

II

“A
defendant is free to simply appeal directly from a judgment of conviction and
contend that the record made at the time the plea was entered is inadequate . .
. .” Brown
v. State, 449 N.W.2d 180, 182 (Minn.
1989). To be constitutionally valid, a
guilty plea must be accurate, voluntary, and intelligent. State v.
Ecker, 524 N.W.2d 712, 716 (Minn.
1994). The accuracy of a plea is
established by “sufficient facts on the record to support a conclusion that
defendant’s conduct falls within the charge to which he desires to plead
guilty.” State v. Iverson, 664 N.W.2d 346, 349 (Minn.
2003) (quotation omitted).

The
second-degree murder statute provides, in relevant part, that the crime is
committed when a person “causes the death of a human being with intent to
effect the death of that person or another, but without premeditation . . . .” Minn.
Stat. § 609.19, subd. 1(1) (2002). The
aiding-and-abetting statute adds that a person is liable (1) for the crimes of
another if the person “intentionally aids, advises, hires, counsels, or
conspires with or otherwise procures the other to commit the crime[,]” and (2) for
any other crime “committed in pursuance of the intended crime if reasonably
foreseeable by the person as a probable consequence of committing . . . the
crime intended.” Minn. Stat. § 609.05,
subds. 1-2 (2002).

Lee
admitted to assaulting Moua. Thus, the remaining
inquiry is whether Moua’s murder was (1) committed in pursuance of the assault,
and (2) reasonably foreseeable as a probable consequence of the assault. SeeState v. Merrill, 428 N.W.2d 361, 369 (Minn. 1988) (concluding that it was reasonably
foreseeable that victim’s murder was probable consequence of appellant’s
commission of aggravated robbery).

Lee
argues that the facts elicited at his plea hearing do not show Moua’s murder
was reasonably foreseeable because Lee did not admit to stabbing Moua,
intending Moua’s death, having a knife, or knowing that a knife was present before
he saw Vang brandishing a knife. Lee
also contends that his admission to aiding and abetting and participating in
Moua’s murder was the result of leading questions.

The
plea testimony clearly establishes that the murder was in pursuance of the assault. In Lee’s own words, his friends started
beating and ultimately stabbing Moua after Lee punched him in the face. Moua’s murder was thus an escalation of the assault
itself.

The
plea testimony also shows that Moua’s murder was reasonably foreseeable. Lee knew Moua had assaulted Song earlier in
the evening, he knew Song carried knives, and he knew Song’s purpose in
locating Moua was to retaliate. On those
facts, Moua’s murder was entirely foreseeable.

Lee’s
remaining arguments do not affect the constitutional validity of his plea. Lee knew Song carried knives; thus the point
at which he discovered that Vang was also armed is not material. And the use of leading questions to elicit a
factual basis is immaterial if a plea is voluntary and intelligent on the
whole. Perkins v. State, 559 N.W.2d 678, 689 (Minn.
1997). Neither Lee’s argument nor the
plea transcript provides a basis for concluding that his plea was not voluntary
and intelligent.

Lee
failed to offer compelling reasons to support his motion to withdraw his guilty
plea, and the district court’s denial of that motion was not an abuse of
discretion. The transcript of Lee’s plea
hearing provides ample factual support for each of the elements necessary to
establish the crime to which he pleaded guilty; Lee’s conviction did not lack a
factual basis.